The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) WP (C) 131/2008

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IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) WP(C) 131/2008

1. The Union of India, represented by the Secretary to the Government of India, Ministry of Defence, New Delhi-110011. The Director General of EME, Army Headquarters, New Delhi 110011. The Estt. Officer, 1 Advance Base Workshop EME, C/o. 99 APO. The Commandant, 1 Advance Base Workshop EME, C/o. 99 APO. ...........Petitioners -VsShri Brij Nandan Sharma, Son of Late M. Sharma, Resident of Narangi Pathar Quarry, Near Anchalik College, P.O. Udayan Vihar, Guwahati -781026, Assam .Respondent. BEFORE THE HONBLE MR. JUSTICE B.K. SHARMA THE HONBLE MR. JUSTICE L. S. JAMIR For the petitioner For the respondents Date of hearing Date of judgement : : : : Mr. J. Roy, Adv. Mr. M. Choudhury, Adv. Mr. K.N. Choudhury, Sr. Adv. Mr. R. Dubey, Adv.. 29.05.2013. 24.07.2013.

2. 3. 4.

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JUDGEMENT AND ORDER (CAV) Sharma, J This writ petition is directed against the judgement and order dated 9.8.2006 passed by the Central Administrative Tribunal, Guwahati Bench, in the Original Application being OA No. 283/2005 affirmed on review vide order dated 26.6.2007 in RA No. 5/2006. By the impugned judgement and order, the learned Tribunal has issued direction to grant ACP to the applicant who is the respondent herein to the next upgradation from Rs. 4000/- to Rs. 6000/- to Rs. 4500 7000/- as Master Craftsman from the date he was eligible for the ACP. On granting of the ACP, the respondent is to get notional benefit increasing his pensionary benefits. Be it stated here that the respondent has already retired from service on attaining the age of superannuation. 2. The brief facts leading to filing of the writ petition are as

follows : 3. The respondent, who was the applicant before the learned

Tribunal was a civilian employee under the petitioners i.e. the Indian Army. He was enrolled in 1, Defence Base Workshop, EME (Corps of Electronics and Mechanical Engineering) on 31.1.1967. Thereafter he was absorbed as permanent civilian Pattern Maker in Defence Artisan Staff w.e.f. 1.1.1979. He having qualified in the prescribed trade test, was promoted from the post of Skilled Grade (Pattern Maker) to the Highly Skilled Grade-II w.e.f. 01.07.1987 in the scale of pay of Rs. 1200 1800/-. Thereafter, he having further qualified in the prescribed trade test, was further promoted from the post of Highly Skilled Grade-II to Highly Skilled Grade-I w.e.f. 10.8.1996 in the scale of pay of Rs. 1320 2040/-. The respondent belonging to Grade-C Industrial category retired from service on attaining the age of superannuation. At that point of time, he was in the pay scale of Rs. 4000 6000/- (revised) of Highly Skilled Grade-I.

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4.

When the petitioner was absorbed under the petitioners as

Skilled Grade, the Defence Artisan Staff in the Industrial Trade in various Defence establishments comprised of the following Grade structures :i. ii. iii) iv) 5. Skilled. Highly Skilled II Highly Skilled I Master Craftsman.

A Skilled Grade Artisan was eligible to be promoted to the

Highly Skilled Grade-II subject to passing the prescribed trade test. Similarly, the Highly Skilled Grade-II was eligible for promotion to Highly Skilled Grade-I on passing the prescribed trade test. An employee either working as Skilled of Highly Skilled-II or Highly Skilled Grade-I or Master Craftsman, in the general term is known as Tradesman. 6. The post of Master Craftsman (MCM) in the Defence

Establishment was created in the year 1982 vide Ministry of Defence letter dated 21.09.1982.The letter also laid down the criteria for promotion to the most of Master Craftsman which inter alia provided that the number of posts of MCM in each trade would be upto 10% of the total number of sanctioned posts in Highly Skilled Grade-I in each organisation. The worker should have rendered a total service of atleast 10(ten) years continuously in the same or allied trade in the Skilled Grade, out of which 3 (three) years service should be in the Highly Skilled Grade-I. It was also provided that the post would be personal to the holders and would lapse with the retirement / wasting of the individuals. The letter also further provided that each Defence Establishment should constitute a Departmental Selection Committee for the purpose of selection applying the yardsticks and parameters laid down in the letter. 7. Pursuant to the Fifth Central Pay Commission

recommendation, the Government of India in the Ministry of Personnel and Public Grievances and Pension vide its OM dated

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09.08.1999 had notified the Assured Career Progression for the Central Govt. civilian employees. As per the said OM, the ACP scheme is applicable to Group B, Group-C and Group-D categories of the service / posts to mitigate the hardship of acute stagnation either in a cadre or in a isolated post. The Government of India keeping in view all relevant facts decided to grant two financial upgradations as recommended by the Fifth CPC and also in accordance with the agreed settlement dated 11.09.1997 on completion of 12 years and 24 years of regular service respectively subject to the conditions stipulated therein. As per the said OM, the ACP Scheme should in no case affect the normal (regular) promotional avenues available on the basis of vacancies and vacancy based regular promotion, as distinct from financial upgradation under the SCP Scheme and that the same would continue to be granted after due screening by a regular DPC as per the relevant rules / guidelines. The salient conditions for grant of the benefits under the ACP scheme are as follows :1. The ACP Scheme envisages merely placement in the higher pay scale /grant of financial benefits (through financial upgradation) only to the Government servant concerned on personal basis and shall, therefore, neither amount to functional /regular promotion nor would require creation of new posts for the purpose. The financial benefits under the ACP Scheme shall be granted from the date of completion of the eligibility period prescribed under the ACP Scheme or from the date of issue of these instructions whichever is earlier. The first financial upgradation under the ACP Scheme shall be allowed after 12 years of regular service and the second upgradation after 12 years of regular service from the date of the first financial upgradation subject to fulfillment of prescribed condition. Two financial upgradations under the ACP Scheme in the entire Government service career of an employee shall be counted against regular promotions (including in-situ promotion and fast-track promotion through limited departmental competitive examination) availed from the grade in which an

2.

3.

4.

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employee was appointed as a direct recruit. This shall mean that two financial upgradations under the ACP Scheme shall be available only if no regular promotions during the prescribed periods (12 and 24 years) have been availed by an employee. If an employee has already got one regular promotion, he shall qualify for the second financial upgradation only on completion of 24 years of regular service under the ACP Scheme. In case two prior promotions on regular basis have already been received by an employee, no benefit under the ACP Scheme shall accrue to him. 5. Residency periods (regular service) for grant of benefits under the ACP Scheme shall be counted form the grade in which an employee was appointed as a direct recruit. Fulfillment of normal promotion norms (bench-mark, departmental examination, seniority-cum-fitness in the case of Group D employees, etc) for grant of financial upgradations, performance of such duties as are entrusted to the employees together with retention of old designations, financial upgradations as personal to he incumbent for the stated purposes and restriction of the ACP Scheme for financial and certain other benefits (House Building Advance, allotment of Government accommodations, advances, etc) only without conferring any privileges related to higher status (e.g. invitation to ceremonial functions, deputation to higher posts, etc) shall be ensured for grant of benefits under the ACP Scheme. Financial upgradation under the Scheme shall be given to the next higher grade in accordance with the existing hierarchy in a cadre/category of posts without creating new posts for the purpose.

6.

7.

8.

Besides the aforesaid conditions, there are other conditions

which are required to be fulfilled for grant of ACP as laid down in the said OM dated 09.08.1999 (Annexure-II). Certain clarifications was issued in respect of the said OM dated 09.08.1999 vide OM dated 10.2.2000. 9. Pursuant to the introduction of the ACP scheme and the

subsequent clarifications, the authority in the Department of EME had considered the said scheme in its entirety and thereafter the

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Director of EME issued a Standing Operating Procedure (SOP) vide letter dated 15.5.2002 for implementation of the ACP Scheme duly taking note of the conditions stipulated for financial upgradation under the ACP Scheme. The said SOP also laid down the basic conditions including the following :(i) Fulfillment of normal promotion norms i.e. bench mark as per ACR grading, seniority cum fitness for Group D employees or Trade Test for Industrial employees is a must. Employees who have completed eligibility service as on 09.08.1999 but retired prior to first meeting of Screening Committee may also be considered for grant of benefits under ACPS if assessment is based on ACRs. The same is not possible in cases where passing of trade test/ written examination etc. is mandatory for promotion, as assessment based on such tests is not possible after the date of superannuation.

(ii)

10.

Pursuant to the Fifth CPC recommendation, recommending for

restructuring of the cadre of Artisan staff in the Defence establishment, the Government conveyed its sanction for the said restructuring of the cadre of Artisan Staff vide its order dated 20.05.2003, the relevant extract of which are as follows :2. The grade structure in the industrial as well as in the non-industrial trades, wherever already available and the pay scales of the Defence artisan staff shall stand modified w.e.f. 1.1.96 as under :(i) (ii) (iii) Skilled Highly Skilled (HS-I + HS-II) Master Craftsman Rs. 3050 4590. Rs. 400 6000. Rs. 4500-7000.

3.(a) Wherever the grade structure in the Industrial as well as in the Non-Industrial trades is already existing in the ration of 65 : 20 : 15, in the erstwhile Skilled : HS II : HS-I, the merger of HS II and HS-I shall be treated to have come into effect from 1.1.96 and the grade structure of Skilled and Highly

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Skilled categories shall be in the ratio of 65 : 35 (20+15). (b) The post of Master Craftsman shall not be part of the hierarchy and the placement in this grade will not be treated as promotion for Highly Skilled Grade either under normal promotion rules or under ACP Scheme. -------------------------------------------------------------------------4.(iv) The post of Master Craftsman shall continue to be considered as Highly Skilled Grade for the purpose of promotion to the Grade of Chargeman II (Rs. 50008000). (v) The benefit of the first and second ACP to the skilled workers will be as per the orders issued by the DOP&T under their OM dated 9.8.1999 and subsequent clarifications issued on the subject.

11.

Pursuant to the said order dated 20.5.2003, the Ministry of

Defence, Government of India merged the 2 (two) artisan cadres namely Skilled Grade-II and Highly Skilled Grade-I in a single grade of Highly Skilled with effect from 01.01.1996 and the next higher posts for which they became eligible to be considered for promotion was that of Chargeman II, which falls in the supervisory grade, subject to fulfillment of the norms prescribed. 12. The recruitment and appointment to the post of Chargeman

II is covered by the Corps of Electrical and Mechanical Engineers Chargeman I (Part-I and Part-II cadre) and Chargeman II (Part-I and Part-II cadre) Recruitment Rules, 2002, under which 66 & 2/3% posts of Chargeman II are to be filled up by promotion and the following categories of employees are eligible to be considered for promotion :(i) Tradesman (Rs. 4000-6000) with not less than eighty years service in the grade, subject to passing necessary trade test.

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(ii)

Master Craftsman (Rs. 4500 7000) who have passed Supervisory test will also be considered as per their tradesmen seniority with not less than continued 8 years service of tradesman and Master Craftsman.

Earlier their conditions of service were governed by the Corps of Electrical and Mechanical Engineers Recruitment Rules, 1977. 13. As stated above, the applicant/respondent retired form

service on 30.09.2003 in the pay scale of Rs. 4000-6000/- as Highly Skilled Grade-I, which had become Highly Skilled Grade- w.e.f. 1.1.1996, subsequent to the aforementioned order dated 20.5.2003 merging the two cadres, namely, Highly Skilled Grade-II and Highly Skilled Grade-I. It will be pertinent to mention here that the recommendations for promotion of the respondent to Master Craftsman were forwarded to the higher authorities during 1999, 2000 and 2001 but due to non-availability of vacancy for Pattern Maker for Master Craftsman, the respondent could not be promoted. Pursuant to his retirement from service he has already received all pensionary benefits commensurating his position as Highly Skilled Grade. However, subsequent to his such retirement, he submitted representation dated 14.5.2004 and 20.9.2004 contending inter alia that in view of the particular clause in the ACP scheme dated 20.5.2003, he was entitled to get financial upgradation to the scale of pay of Master Craftsman with appropriate fixation of pensionary benefits. According to the petitioners, though the respondent had contended that his juniors were promoted but he failed to cite any example. During the course of hearing of the instant writ petition also, on being asked as to whether any junior to the respondent was promoted, no example could be cited. 14. It is in the aforesaid back drop, the respondent had

approached the Tribunal by filing OA No. 104/2005 which was disposed of by order dated 13.5.2005 at the admission stage itself directing the respondent to make representation to the authority and consideration of the said representation in accordance with law.

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15.

Pursuant to the aforesaid order dated 13.5.2005 passed by the

Tribunal in OA No. 104/2005, the representation submitted by the respondent on 30.5.2005 was considered by the authority and rejected by the impugned order dated 17.9.2005 (Annexue-10). Being aggrieved, the respondent once again approached the Tribunal by filing another OA registered and numbered as OA No. 283/2005. The said OA has been allowed with the following directions :7. In the conspectus fact sand circumstances, we are of the considered view that the applicant cannot be availed the second promotion ad therefore the impugned order dated 17.9.05 has not been issued under in good spirit of law and to be set aside. The applicant is entitled to get the second ACP which is on the normal basis to the next up gradation from Rs. 4000-6000/- to Rs. 4500-7000/- as Master Craftsman from the date he is eligible for ACP. We make it clear that the applicant is only entitled to get notional benefit but that will have an effect on his pensionary benefits, since he has already retired. The relief shall be granted to the applicant forthwith in any case within 3 months from the date of receipt of this order. OA is allowed. In the circumstances no order as to costs. 16. Being aggrieved by the said direction, the petitioners filed an

application for review of the said judgement under Section 22(f) of the Administrative Tribunal Act, 1985. The said application was registered and numbered as RA 5/2006 but the same having been rejected by judgement and order dated 26.6.2007, the petitioners have filed the instant writ petition. 17. While admitting the writ petition, this Court was inclined to

pass an interim order to the effect that the payment as directed by the learned Tribunal would be subject to the outcome of the writ petition. 18. We have heard Mr. J. Roy, learned counsel along with Mr. M.

Choudhury, learned counsel for the petitioners. We have also heard

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Mr. K.N. Choudhury, learned senior counsel assisted by Mr. R. Dubey, learned counsel for the applicant/respondent. We have also considered the entire materials on record. After giving our anxious consideration to the submissions and the materials on record, our findings and conclusions are recorded below : 19. In the original application filed before the Tribunal, the prayer

made was as follows: 8. RELIEFS SOUGHT FOR : Under the fact sand circumstances stated above, the applicant humbly prays that Your Lordships be pleased to admit this application and notice be issued to the respondents to show cause as to why the reliefs sought for by the applicant shall not be granted, call for the records of the case and on perusal of the records and after hearing the parties on the cause or causes that may be shown, be pleased to grant the following reliefs :8.1 8.2 Set-aside/quash the impugned Order dated 17.09.2005 passed by the Respondent No.4. Direct the Respondent authorities to consider the case of the applicant for promotion to the post of Chargeman with effect from the date of implementation of the ACP Scheme on notional basis. Direct the Respondent authorities to make payment of all the pecuniary dues of the applicant including arrear salary after promoting the applicant on notional basis from the date of implementation of the ACP Scheme. Direct the Respondent authorities to revise and make payment all the pensionary benefits of the petitioner in terms of the notation promotion. Cost of the application. Any other relief or reliefs to which the applicant is entitled to, under the facts and circumstances of the case as may be deemed fit and proper by the Honble Tribunal.

8.3

8.4

8.5 8.6

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20.

If we go by the aforesaid prayer, it is seen that the applicant

i.e. the respondent herein had aspired for promotion to the post of chargeman with effect from the date of implementation of the ACP scheme on notional basis, There was no prayer for promotion to the post of MCN as has been provided by the learned Tribunal. As to what is the direction contained in the impugned judgment of the Tribunal has been noted above. As per the said direction, the applicant is entitled get second ACP on notional basis as Muster craftsman from the date he became eligible for ACP. However, the same was not the prayer made in the O.A. As noted above, the prayer was for promotion to the post of chargemen. 21. It will be pertinent to refer at this stage the specific

averments made by the applicant in his O.A. in respect of his claim for promotion to the post of chargeman. 4.9. That the aforesaid representations submitted by the applicant were dealt with by the Respondent authorities vide letters dated 29/05/2004 and 19/10/2004. The Respondent authorities had issued both these letters without any application mind with an absolute mechanical approach. The Respondents authorities failed to consider the fact that the applicant was entitled for promotion way back in the year 1999. The Respondent authorities simply rejected the aforesaid representations submitted by the applicant only on the ground that the applicant had never worked as a Master Craftsman to be considered for the next grade of promotion i.e. the Post of Chargeman. The Respondent authorities failed to take note of the fact that the applicant was working in the grade of highly skilled in the pay scale of Rs. 4000-6000/-. As such, he was very much in the feeder cadre for being promoted to the post of Chargeman. Needless to mention here that several persons who were placed much below the applicant had been arbitrarily promoted by the Respondent authorities by superseding the applicant. 4.10. That being highly aggrieved and dissatisfied with the repeated non-consideration of the case of the applicant for being promoted to the post of Chargeman on a national basis by the respondents, the applicant was left with no other option but to

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approach this Honble Tribunal by way of an Original Application being OA No. 104 of 2005. 5.2. For that the Respondents authorities have failed to consider the fact that the name of the applicant was approved for the post of Master Craftsman way back in the year 1999 but could not be placed in the said post for want of vacancy and efforts were made to create a new post of Master Craftsman for accommodating the applicant. The post of Master Craftsman being kept in the same hierarchy as that of Highly Skilled, as such the petitioner in terms of the Assured Career Progression Scheme had already qualified before his retirement for being promoted to the post of Chargeman, which is the next grade in the hierarchy. As such, the applicant is entitled to be promoted in terms of the ACP Scheme even after his retirement on notional basis with all consequential benefits thereof. 5.3. For that the Respondent authorities have acted in a manner contrary to all the settled and established principles of service jurisprudence in refusing to promote the applicant and promoting other persons who were much junior to the applicant. Such action on the part of the respondent authorities is violative of Articles 14 and 16 of the Constitution of India. Although an employee cannot claim promotion as a matter of right, however, as has been held by the Honble Supreme Court, the right to be considered for promotion is a fundamental right. In view of the facts and circumstances that have been narrated hereinabove, it was incumbent upon the respondents to consider the case of the Applicant in the light of the policy decision of the Govt. of India. Moreover, the fundamental right guaranteed to the Applicant under Article 16 of the Constitution of India was infringed the moment his immediate junior was promoted. 5.6. For that the claim of the applicant in OA No. 104 of 2005was that his candidature was already forwarded for the post of Master Craftsman way back in 1999, however, the same did not materialize for want of vacancy. However, after the ACP Scheme was implemented, the applicant is fit to be considered for promotion notionally to the post of Chargeman, which is the next higher post in the hierarchy.

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5.8. For that the Respondent No.4 while issuing the impugned Order dated 17/09/2005 completely misinterpreted the Order dated 13/05/2005 passed by his Honble Tribunal in OA No. 104 of 2005. The Respondent No.4 under some miss conception of fact as well as of law rejected the case of the applicant and considered the case of the applicant for selection to the post of Master Craftsman only, which was never the case. 22. In the written statement that was filed by the respondent in

the Tribunal it was contended that the applicant was not entitled to get promotion to the post of Muster craftsman. Referring to his two promotions he had already earned, it was also contended that the ACP scheme was implemented in 1999 and not in 2003 as was stated by the applicant. As noted above, the applicant was first promoted from skilled to HS Grade-II on 1.1.1987 and from HS Grade-II to HS Grade-I on 10.8.1996 i.e. before implementation of the ACP scheme. Thus it was contended by the respondents in their Written Statement that the applicant having already earned two promotions he was not entitled to get further promotions under ACP scheme. It was also contended that for promotion to the post of chargeman, the applicant was to earn his eligibility and that it was not automatic. 23. After the impugned judgment and order passed by the learned

Tribunal, the respondents i.e. the petitioners filed the review application being R.A. No. 5/2006. In the review application, it was specifically contended that there was error apparent on the face of the record and that even for promotion to the post of chargeman, which in fact was the prayer of the applicant, the normal rules of promotion was to be followed and that the applicant could not have claimed automatic promotion. However the learned Tribunal by its impugned judgement and order dated 26.6.2007 rejected the said review application on the ground of non-availability of any ground for review of the earlier judgement and order. 24. Annexure-4 is the Office Memorandum dated 09.08.1999 on

the ACP Scheme. As laid down in the said OM, the incumbents under the said OM are entitled to two financial upgradations as

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recommended by the Fifth CPC on completion of 12 years and 24 years, which however, would be subject to the conditions laid down in Annexure-1 to the said OM. As per the conditions for grant of benefits under the ACP Scheme, the financial benefits under the said Scheme is to be granted from the date of completion of the eligibility period from the date of issue of the instructions, whichever is later. Fulfillment of normal promotion norms i.e. bench mark, departmental examination, seniority-cum-fitness in the case of Group D employees etc for grant of financial upgradations, performance of such duties as are entrusted to the employees together with retention of old designations was also emphasized. Clause 6 and 7 of the said OM are quoted below : 6. SCREENING COMMITTEE 6.1 A departmental Screening Committee shall be constituted for the purpose of processing the cases for grant of benefits under the ACP Scheme. 6.2 The compo sition of the Screening Committee shall be the same as that of the DPC prescribed under the relevant Recruitment/Service Rules for regular promotion to the higher grade to which financial up-gradation is to be granted. However, in cases where DPC as per the prescribed rules is headed by the Chairman/Member of the UPSC, the Screening Committee under the ACP Scheme shall, instead, be headed by the Secretary or an officer of equivalent rank of the concerned Ministry/Department. In respect of isolated posts, the composition of the Screening Committee (with modification as noted above, if required) shall be the same as that of the DPC for promotion to analogous grade in that Ministry/Department. 6.3 In order to prevent operation of the ACP Scheme from resulting into undue strain on the administrative machinery, the Screening Committee shall follow a timeschedule and meet twice in a financial year preferably in the first week of January and July for advance processing of the cases. Accordingly, cases maturing during the firsthalf (April-September) of a particular financial year for grant of benefits under the ACP Scheme shall be taken up for consideration by the Screening Committee meeting in the first week of January of the previous financial year. Similarly, the Screening Committee meeting in the first week of July of any financial year shall process the cases that would be maturing during the secondhalf (OctoberMarch) of the same financial year. For example, the Screening Committee meeting in the first week of January, 1999 would process the cases that would attain maturity

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during the period April 1, 1999 to September 30, 1999 and the Screening Committee meeting in the first week of July, 1999 would process the cases that would mature during the period October 1, 1999 to March 31, 2000. 6.4 To make the Scheme operational, the Cadre Controlling Authorities shall constitute the first Screening Committee of the current financial year within a month from the date of issue of these instructions to consider the cases that have already matured or would be maturing up to March 31, 2000 for grant of benefits under the ACP Scheme. The next Screening Committee shall be constituted as per the time-schedule suggested above. 7. Ministries/Departments are advised to explore the possibility of effecting savings so as to minimize the additional financial commitment that introduction of the ACP Scheme may entail. 25. The aforesaid Annexure-4 OM dated 9.8.1999 was followed by

Annexure-5 OM dated 10.2.2000, by which certain clarifications had been issued. The relevant portions of the said clarifications are quoted below :F. No. 35034/1/97-Estt(D)(Vol.IV) Government of India, Ministry of Personnel, Public Grievances and Pension (Department of Personnel and Training) New Delhi, 110001 February 10,2000 OFFICE MEMORANDUM Subject : Assured career Progression Scheme for the Central Government Civilian Employees Clarifications regarding. The undersigned is directed to invite reference to the Department of Personnel and Training Office Memorandum of even number dated August 9, 1999 regarding the Assured Career Progression Scheme (ACPS). Consequent upon introduction of the Scheme, clarifications have been sought by various Ministries /Departments about certain issues in connection with implementation of the ACPS. The doubts raised by various quarters have been duly examined and pointwise clarifications have accordingly been indicated in the Annexure. 2., The ACP scheme should strictly be implemented in keeping with the Department of

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Personnel and Training Office Memorandum of even number dated August 9, 1999 read with the aforesaid clarifications (Annexure), cases where the ACP Scheme has already been implemented shall be reviewed /rectified if the same are not found as to be in accordance with the scheme/clarifications. 3. All Ministries / Departments may give wide circulation to this clarificatory instructions for general guidance and appropriate action in the matter. 4. Hindi version would follow. ( K.K. Jha ) Director (Establishment). 26. Consolidating the instructions in reference to the ACP,

Annexure-C guidelines was issued which is dated 15.5.2002. As per the said guidelines, the fulfillment of normal promotion norms i.e. bench mark as per ACR grading, seniority-cum-fitness, trade test for industrial employees is a must. Laying down the hierarchy in the matter of promotion it was laid down as follows :8. HIERARCHY (a) Group C Non-industrial centrally controlled categories as given in Annexure-I to this SOP are not required to appear for any test and their financial upgradation will be considered by Departmental Screening Committee to be conducted by EME Recording after assessment of their suitability. (b) Group D Non-industrial locally controlled categories are given in Annexure-II will be given the financial upgradation by publishing DO part-II after approval by the Unit Promotion Committee conducted at unit level after assessing their suitability. Group C & D Industrial Personnel (Locally/Unit controlled) as given Annexure-III will be given the financial upgradation after passing the trade test, as per RPs and after approval by Departmental Screening Committee after assessing their suitability. (d) Selection grade or in-situ promotion which is not a part of Hierarchy shall not count as promotion e.g. Master Craftsman is not part of hierarchy for

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employees in the Gde I. However, the post of MCM is personal to the individual in the pay scale of Rs. 7000/- and is not to be treated as promotion vide Min. of Def. letter No. 1(2)/80/D(Civ. I) dated 21 Sep 1982 and further amendments. In this case, if an individual has been elevated as MCM and has passed supervisor test and is eligible for first or second in the scale of Rs. 5000-8000, his pay is to be fixed as clarified vide ser.2 of DOP/OM No. 35034/1/97/Estt Dy(Vol IV) dated 10 Feb 2000. (e) Higher pay scale granted without any condition not to count as promotion the case of Draughtsman the pay scale of Draughtsman Gde-I were upgraded to Rs. 5000-8000 and Rs. 5500-9000 instead of equivalent scale of Rs. 4500-7000. 27. As regard the trade test it was laid down as follows : 12. TRADE TEST (a) Employees who are eligible for ACP on 09.8.1000 but qualified the trade test in first attempt after 09.8.1999 to be allowed benefits of ACP from 09.8.1999 and not from date of passing trade test. (b) Those who qualify in subsequent attempts to be allowed benefits of ACP from date of passing trade test. (c) No benefit from 09.8.99 to those who appeared and failed in trade test before 09.8.999 or not appeared at all or not passed the trade test. (d) ACP Scheme not linked with vacancy. ACP to be implemented without waiting for issue of revised PETITIONER & as per existing RPs. (e) Hence trade test of Industrial employees completing 12 or 24 years service can be held irrespective of ratio / zone of consideration as per Departmental regulations if any. (f) The trade test is of two types, as under :(i) The trade test from Labour to Mate, mate to Skilled, Skilled to HS-II and HS-II to HS-I. (ii) Supervisors test for promotion from tradesman to Chargeman.

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(g) Screening Committee for trade test will meet twice in a year (i.e.) in the month of Jan and July. Accordingly supervisory trade test is to be conducted in May/Nov. Eligibility for the supervisory trade test will be as under :(i) EME Record will circulate the list of persons who were in the consideration zone for promotion and have not cleared the trade test. The Unit will forward the name of the individuals who are likely to complete 12 years of service and are due for ACP to the respective Base Workshop where the trade test is to be conducted. all other trade test wherever applicable for ACP will be conducted by the respective Unit/Base Workshop.

(ii)

(iii)

28.

Learned counsel for the parties have exclusively referred to

the Annexure-7 circular letter dated 20.5.2003 to sustain their points of arguments. The said circular letter is on the subject of restructuring of cadre of Artisan staff in Defence Establishments in modification of the recommendations of Fifth CPC. For a ready reference, the said circular letter dated 20.5.2003 is quoted below : No. 11(1)/2002/D(Civ.1) Government of India Ministry of Defence. New Delhi, the 20th May, 2003. To The Chief of Army Staff The Chief of Air Staff The Chief of Naval Staff The DGOF & all the Heads of Inter Services Organisations. Subject : Restructuring of Cadre of Artisan Staff in Defence Establishments in modification of th recommendations of 5 CPC. Sir,

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The matter regard restructuring of Cadre of Artisan Staff in Defence Establishments has been under consideration of the Government for quite some time. Now in partial modification of the recommendations of the Vth CPC made in paras 54.16-18 and 54.29 of its report, I am directed to convey the sanction of the President as under 2. The grade structure in the industrial as well as in the non-industrial trades, wherever already available and the pay-scales of the Defence artisan staff shall sand modified w.e.f. 1.1.196 as under :(i) (ii) (iii) 3. (a) Skilled Highly Skilled (HS-I + HS-II) : : Rs. 3050-4590. Rs. 4000-6000. Rs. 4500-7000.

Master Craftsman :

Wherever the grade structure in the Industrial as well as in the Non-Industrial trades is already existing in the ration of 65:20:15, in the erstwhile Skilled : HS-II : HS-I, the merger of HS-II and HS-I shall be treated to have come into effect from 1.1.96 and the grade structure of Skilled and Highly Skilled categories shall be in the ratio of 65:35 (20 + 15). The post of Maser Craftsman shall not be part of the hierarchy and the placement in this grade will not be treated as promotion for Highly Skilled Grade either under normal promotion rules or under ACP Scheme. The selection from Highly Skilled grade to the grade of the Master Craftsman shall be 10% of Highly Skilled Cadre (i.e. 10% of 35% of the total) and the placement in this grade shall be w.e.f. 1.1.96 and upto the date of the issue of these orders. The placement of the individuals in the posts resulting from the restructuring and ratio revision, shall be made w.e.f. 1.1.96, min relaxation of the conditions, if any i.e. trade test etc., as one time measure. The above provisions may also be made applicable, as a special case, in relaxation of the existing rules/instructions to the employees who have either retired or died after 1.1.96.

(b)

(c)

(d)

(e)

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4.

(i)

From the date of issue of these orders, all the trades classified as Skilled (including left out trades) in the Industrial as well as in the nonIndustrial Estts. Shall now be modified in the following inter-grade ratio :1. Skilled (Rs. 3050-4590) : 45% 2. Highly Skilled (Rs. 4000-6000): 55% 3. Master Craftsman (Rs. 4500-7000):25% of the Highly Skilled Grade posts will be placed in the grade of the Master Craftsman. They will, however, not be a part of the hierarchy.

(ii)

The above-mentioned inter-grade ratio shall be worked out based on the sanctioned/authorized strength. Since the post of Master Craftsman is not part of the hierarchy, the placement in this grade shall not be treated as promotion for Highly Skilled Grade either under normal promotion rules or under ACP Scheme. The post of Master Craftsman shall continue to be considered as highly skilled grade for the purpose of promotion to the grade of Chargeman-II (Rs. 5000-8000). The benefit of the first and second ACP to the skilled workers will be as per the orders issued by the DOP&T under their OM dated 9.8.99 and subsequent clarifications issued on the subject. Where there is direct recruitment at the level of HS-I/HS-II in Defence Estts., the number of Master Craftsmen (not exceeding 25% of Highly Skilled) may be decided considering the functional requirements by the concerned administrative Sections in the Ministry of Defence in consultation with their concerned integrated Finance. The placement of the individuals in the posts resulting from the above restructuring and ratio revision shall be made from the date of issue of the orders, in relaxation of the conditions, if any, as one time measure.

(iii)

(iv)

(v)

(vi)

(vii)

(viii) The procedure for selection to the grade of Master Craftsman shall be as laid down in para- 2 & 3 of Ministry of Defence letter No. 1(2)/80/D(Civ.I) dated 21st September, 1982, as amended with the exception that the

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number Master Craftsmen in each trade shall be upto 25% of the total number of sanctioned posts in the Highly Skilled grade in each organisation instead of 10% as was provided for in para-2(i) of the aforesaid Ministry of Defence letter. (ix) The existing recruitment rules for Tradesmen may be amended accordingly. the

5. The expenditure involved will be debitable to the respective heads of Defence Services Estimates. 6. This issues with the concurrence of the Ministry of Defence (Finance) vide their U.O. No. 350/PG/03 dated 19.5.2003. Yours faithfully, Sd/(Piara Ram) Under Secretary to the Government of India.

29.

On perusal of the said letter it is seen that the post of Master

Craftsman shall not be part of the hierarchy and placement in this grade will not be treated as promotion for Highly Skilled Grade either under normal promotion rules or under ACP Scheme. On the other hand, the selection from Highly Skilled Grade to the grade of Master Craftsman shall be 10% of Highly Skilled cadre (i.e. 10% of 35% of the total) and the placement in this grade shall be with effect from 1.1.1996 and upto the date of the issue of the circular letter. The placement of the individuals in the posts resulting from the restructuring and ratio revision, shall be made w.e.f. 1.1.1996, in relaxation of the conditions, if any, i.e. trade test etc, as one time measure. 25% of the Highly Skilled Grade posts will be placed in the grade of MCM. However, they will not form part of the hierarchy. 30. Mr. J. Roy, learned counsel representing the petitioners

submitted that the post of MCM being not in the hierarchy of promotion, the learned Tribunal could not have issued direction for promotion of the applicant to the said post, Mr. Choudhury, learned senior counsel representing the respondent on the other hand submitted that the benefit that would accrue to the applicant is

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because of the restructuring about which clause-D of the circular letter has indicated. According to him the said clause is applicable to the applicant which may not be under the ACP. 31. Staff By the aforesaid circular letter dated 20.5.2003, the Govt. of in Defence Establishment in modification of the

India in the Ministry of Defence had restructured the cadre of Artisan recommendation of Fifth CPC. As noted above, the applicant although was recommended for promotion to the post of MCM in the years 1999, 2000 and 2001, but due to non-availability of vacancy for Pattern Maker for MCM he could not be promoted. Apart from the fact that neither the Tribunal nor this Court can issue any direction for creation of the post of MCM for promotion of the applicant. Even the respondent authority could not create any post as the same was fixed for each trade as per their strength. Moreover, the post of MCM being not in the avenue of promotion but being only a case of placement, in absence of any vacancy there could not have been any direction for promotion of the applicant to the said post. As to whether because of the restructuring as indicated in the aforesaid circular letter dated 20.5.2003, the applicant was to be promoted /placed in the post of MCM against the available quota is a matter to be decided by the authority. However, falling back on the ACP scheme, the Tribunal could not have directed the petitioners for granting the benefit of the same by placing the applicant in the post of MCM as promotion. 32. Above apart, as noted above, the own case of the applicant

before the Tribunal was for his promotion to the post of Chargeman. However, even under the ACP scheme upgradation cannot be claimed as a matter of right as the same is also subject to fulfillment of other mandatory conditions. The Tribunal also failed to consider that the Grade of Master Craftsman is not in the existing hierarchy as per the recommendation of the Fifth CPC. An employee in the grade of Highly Skilled in the pay scale of Rs. 4000 Rs. 6000/- cannot be granted financial upgradation under the ACP Scheme to the grade of MCM in the pay scale of Rs. 4500 7000/-. Further, to be eligible for

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the financial upgradation under the ACP scheme, one has to fulfill all the normal promotion norms. One of the mandatory eligibility conditions for promotion of a Highly Skilled Tradesman to the supervisory Grade Chargeman-II under the recruitment rules is the passing of the trade test. Further, at least 8 years of service in the feeder grade is required. It will be pertinent to mention here that the applicant has not passed the Supervisors Trade Test for promotion from Tradesman to Chargeman. 33. All the above relevant aspects of the matter escaped the

notice of the Tribunal. On the other hand, although the applicant never prayed for promotion to the post of MCM but his case was one of promotion to the post of Chargeman, the learned Tribunal by its impugned judgement and order directed the respondents to grant promotion to the applicant. While issuing the said direction, the Tribunal did not consider that even under the ACP Scheme one is to qualify for upgradation as per normal rules of recruitment. The applicant having not cleared the trade test etc., whether could have been promotion or not was not at all considered by the Tribunal and instead straightway issued the above quoted direction for promotion of the applicant. 34. As noted above, the ACP Scheme was not applicable to the

case of the applicant. Mr. Choudhury, learned counsel representing him fairly admitted that the case of the applicant might not be under the ACP Scheme but would be one under the aforesaid circular letter dated 20.5.2003 (Annexure-7) quoted above. It was emphasized by him that the selection from Highly Skilled Grade to the Grade of MCM being 10% of Highly Skilled Cadre (i.e. 10% 35% of the total), the applicant in view of his earlier recommendations for promotion to the post of MCM was entitled to get the said benefit upon restructuring and ratio revision made effective 1.1.1996. As noted above, it is the specific case of the petitioners that although the applicant was recommended for promotion to the post of MCM on three occasions but could not be promoted for want of vacancy.

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35.

The learned Tribunal proceeded with the matter altogether on

a different notion of the same. According to the Tribunal, the applicant was entitled to get promotion under the ACP Scheme and accordingly issued the aforesaid direction for his promotion from the due date. However, on both counts i.e. an incumbent will have to be qualified to earn the upgradation under ACP scheme and the applicant himself did not ask for his promotion to the post of MCM, but to the post of Chargeman, the Tribunal could not have issued the direction for promotion of the applicant to the post of MCM. 36. Above being the position, we are of the considered opinion

that the impugned judgement and order dated 09/08/2006 passed by the learned Tribunal in OA No. 104/2005 is not sustainable in law. Accordingly, the same stands set aside and quashed. 37. the This now leads us to the issue as was argued by Mr. Choudhury, applicant was entitled to get consideration under the

learned counsel for the applicant that irrespective of the ACP scheme restructuring and ratio revision as envisaged under Annexure-7 circular letter dated 20.5.2003. The circular letter has been quoted above. In terms of the said circular selection from Highly Skilled grade to the grade of MCM shall be 10% of Highly Skilled Cadre. The placement of the individual in the post resulting from restructuring and ratio revision shall be made w.e.f. 1.1.1996, in relaxation of the conditions, if any, i.e. trade test etc. as one time measure. 38. As to whether the applicant would have come under the said

scheme of restructuring and ratio revision is a matter to be decided by the petitioners. Although it has been contended by the petitioners that inspite of the recommendation of the applicant in 1999, 2000 and 2001 for promotion to the post of MCM, he could not be promoted for want of vacancy, but it may have to be considered as to whether it being a case of placement and not promotion, the applicant would have earned his placement upon restructuring and ratio revision as envisaged in the said circular letter dated 20.5.2003. Accordingly, while setting aside and quashing the impugned

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judgement of the learned Tribunal the matter is remanded back to the respondents i.e. the present petitioners for consideration of the case of the applicant under the said restructuring and ratio revision. Let a speaking order be passed in this regard as expeditious as possible preferably within three months from today. 39. The writ petition is disposed of in the above manner leaving

the parties to bear their own costs.

JUDGE

JUDGE

Sukhamay

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